U.S. appeals court judges challenged lawyers for Florida Gov. Ron DeSantis with tough questions Tuesday about limiting the voting rights of felons who have not yet paid their criminal court fines.
The courtroom showdown was part of a federal legal challenge over limits that Florida’s Republican lawmakers and governor have imposed on restoring the voting rights of ex-felons.
A new Florida law – which could tilt the outcome of the 2020 presidential election – allows only ex-felons to vote who have served their prison terms and already paid their court fines or fees. Some of Florida’s 1.4 million ex-felons say they can’t afford to pay.
“Isn’t it punitive to say ‘I will re-enfranchise this group, but not re-enfranchise this group?’” U.S. Circuit Judge Stanley Marcus asked the governor’s lawyers. President Bill Clinton appointed Marcus to the appeals court in 1997, after President Ronald Reagan made him a federal judge in 1985.
Another U.S. Circuit Judge, R. Lainer Anderson, said “What is at stake is the fundamental right to vote. Is it not? It seems like common sense to me.” President Jimmy Carter made Anderson a federal appeals judge in 1979.
Pete Patterson, an attorney for the state, told the judges that voting is not a fundamental right but rather a privilege. Since there is no inherent right to vote, this isn’t considered an equal protection case and there is no discrimination, he said.
“The moment they committed felonies, they forfeited their fundamental right to vote,” Patterson said.
The courtroom argument tracked closely with a tweet attributed to DeSantis on Jan. 16, saying that, “voting is a privilege that should not be taken lightly.” It generated such criticism that DeSantis days later said he wasn’t responsible because he didn’t write it, blaming unspecified staffers.
Florida voters in 2018 approved a constitutional amendment restoring the voting rights of ex-felons who completed “all terms of sentence.” The intense debate has centered on whether those terms include payment of fines and fees.
Anderson said Florida does not have the right to punish a particular group. He described a situation involving two people who committed the same crime and were similarly sentenced, including the same amounts in fines and fees. If only one could pay, he would be allowed to vote, but the other could not.
“It’s precisely the same situation except for punishment on the basis of poverty,” Anderson said.
Marcus asked whether Florida would allow someone to vote who had been ordered to complete community service but could not because of a disability.
The three-judge panel for the U.S. Court of Appeals for the 11th Circuit pressed whether it was rational to automatically restore voting rights for some ex-felons, but not for others who can’t pay their fines.
“They’ve both been reinstated,” said U.S. Circuit Judge Robin Rosenbaum. “There’s an equal playing ground, but now one cannot vote because they haven’t paid fees, and they haven’t paid those fees because they cannot afford to.”
A lawyer for the American Civil Liberties Union, Julie Ebenstein, said about 80% of former felons must pay fines or fees before they can register to vote, but it’s not clear how many have said they are unable to pay. She said state courts don’t expect about two-thirds of fines and fees to be paid because people are indigent or incarcerated, but Anderson pressed her about ex-felons who could pay but choose not to pay.
It’s unclear whether the appeals court will rule in the case before the Feb. 18 deadline for voters in Florida to register for the state’s March 17 primary elections.
This story was produced by Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications.